Mutual Assent - Offer & Acceptance

Question 1

creation of a K requires 3 things

Answer 1

1. mutual assent
2. consideration or substitute
3. are there defenses to the creation of the K

Question 2

Mutual Assent -

Answer 2

offer and acceptance. - a manifestation of willingness to be bound.

Question 3

manifestation of mutual assent-

Answer 3

requires that each of the parties has manifested assent to the proposed terms

Question 4

manifestation

Answer 4

language or conduct directed toward the other party , who hears, see’s or otherwise knows about the manifestation

Question 5

Assent

Answer 5

means a party’s agreement to the proposed terms, which must be articulated with sufficient clarity and specification to the quality of assent

Question 6

material terms

Answer 6

essential to the K to determine whether a breach or a remedy can be established. terms such as
price, date, time of delivery, quantity, etc.
Terms have to be reasonably certain. If can’t determine
1. breach or
2. give remedy
K will fail due to indefinitness

Question 7

Indefiniteness of the K

Answer 7

lack of material terms;

Cure: course of performance (past performance)

Question 8

Elements of an offer…

Answer 8

an offer must be…

1. communicated
2. desire to enter into a K
3. directed to either 1 pers. or a group
   i. contemplate a multiple acceptance
   ii. reward (1st to accept)
4. invitation to acceptance
   i. reasonable way if no terms
   ii. if terms; must meet to accept

Question 9

Counter Offer

Answer 9

a counter offer is a rejection of original offer and is completely a new offer. (is not an acceptance)

Question 10

Acceptance

Answer 10

(C/L) an acceptance must be..

1. positive
2. unconditional
3. unequivocal
4. unambiguous
5. must not change; add to; delete; or qualify any term of the offer

Question 11

Mirror Image

Answer 11

Ribbon matching - this is where the acceptance to the offer has to be exactly word for word or the acceptance may actually be a counter offer due to addition or deletion of material terms.

Question 12

Course of performance

Answer 12

sheds light of what the indefinite part of the K means - cure for indefinitness

Question 13

Indefinitness

Answer 13

1. “purported to agree” on material terms and actually used a vague term
2. Silent to a material term or discuss it & leave it blank - Cts more likely to “Gap fill”
3. “agree to agree”
   * ** the only thing that can’t be gap filled according to UCC - quantity

Question 14

UCC 2-313 Warranty

Answer 14

express warranty under a K - make a promise about what good can actually do can become an express warranty. Promotional material can create an “express warranty”

Question 15

Implied warranty

$2-315

Answer 15

“Default warranties” - going to be in the K unless specifically excluded. —Buyer relies on sellers skill or judgement to furnish or select suitable goods.

Question 16

Exclusion $2-316

Answer 16

must say it. need to be conspicuous and use term.

ie. I am “excluding” the implied warranty of “merchantability” must have” “ words.

Question 17

Advertisements…

Answer 17

they are invitations not offers

Question 18

“Last shot rule”

Answer 18

• who ever had the last shot or counter offer..

- the acceptance was accepting the merchandise

Question 19

“Dorton test”

Answer 19

?

Question 20

$2-207

Answer 20

1. Definite & seasonable expression of acceptance
   - if yes go to “2”
   - if no go to “3”
2. the additional terms are to be construed as proposals for addition to the K. Between merchants such terms become part of the K unless…
   i. the offer expressly limits acceptance to the terms of the offer
   ii. they materially alter it
   iii. notification of rejection has already been given w/in reasonable time
3. Even though it stated terms additional to or different from those offered * conduct

Question 21

$2-207 - definite

Answer 21

solid manifestation that doesn’t diverge significantly as to the dickered terms.

Question 22

dickered terms

Answer 22

terms parties are actually negotiating

Question 23

2-207 - Conduct [3]

Answer 23

conduct by both parties that recognizes the existence of the K is sufficient to establish a k for a sale.
- in this case the terms that would remain on K were the ones agreed upon then gap fill with default terms of UCC

Question 24

$2-207
majority -
minority rules

Answer 24

MAJORITY- Requires exact language to kick K to sub 3
-Knock out rule if terms if different on K

MINORTY- doesn’t require exact - generally offeror’s terms prevail
- first shot rule if terms are different

CA - uses knock out rule for additional and dif. terms

Question 25

2-207 - Hardship

Answer 25

the term poses an un-bargained for burden (financial or otherwise) or detracts significantly from the reasonable expectations of the party

Question 26

2-207 - Surprise

Answer 26

that under the circ. it cannot be presumed that a reasonable merchant would have consented to the additional term.